Offield v. Davis

• Decision Date: 13 March 1902
• Citation: 40 S.E. 910,100 Va. 250
• Court: Virginia Supreme Court
• Parties: OFFIELD v. DAVIS.

40 S.E. 910

100 Va. 250

OFFIELD

v.DAVIS.

Supreme Court of Appeals of Virginia.

March 13, 1902.

marriages—cohabitation and reputation —validity—dower.

Code, § 2222, providing that every marriage in the state shall be under a license, and solemnized in the prescribed manner, but no marriage solemnized by any person professing to be authorized to solemnize the same shall be deemed void, nor shall its validity be affected, for any want of authority of such person, if the marriage is in other respects lawful, and consummated on full belief of the parties that they have been lawfully joined together, abrogates the common law on the subject of marriage, and invalidates any marriage taking place in the state, unless it is shown to have been under a license and solemnized as the statute requires; and hence a woman claiming a marriage with a husband, since deceased, by mutual agreement, without any celebration and without license, cannot claim dower in the decedent's estate.

Appeal from circuit court, Green county.

Bill by Sarah D. Offield against one Davis, claiming dower in the estate of James D. Offield, deceased. There was a decree dismissing her petition, and complainant appeals. Affirmed.

John E. Roller, for appellant

C. P. McMullan and J. E. Thrift, for appellee.

CARD WELL, J. The question presented on this appeal, and for the first time to this court, is whether or not a contract if proved, entered into between a man and a woman, per verba de præsenti, or per verba de futuro cum copula, by which they mutually agreed to become husband and wife, without any celebration and without license, constitutes a valid marriage in this state, and entitles the woman to dower initiate from the time at which the agreement was entered into. In other words, is a common-law marriage entered into in this state valid?

The question arises on the petition of Sarah D. Offield, appellant here, filed in a chancery suit pending in the circuit court of Green county for the enforcement of judgment liens resting upon the lands of James P. Offield, In which she asserts that she became the common-law wife of James P. Offield in April, 1865, and was regularly married to him under a license from the clerk of the county court of Green county on March 25, 1879. She alleges the death of the husband, and claims dower against his estate from the time she became his common-law wife, in April, 1865.

It appears that all the lands of the husband had, when appellant's petition was filed, been sold in the creditors' suit except a very small portion; that the land sold and that unsold was insufficient to pay the liens thereon which were prior in date to March 25, 1879, the time at which appellant and James P. Offield were married in accordance with the statutory regulations In force in this state at that time, and long prior to April, 1865. If there was no valid marriage between these parties prior to March 25, 1879, then the liens asserted in the creditors' suit were paramount to appellant's claim of dower, she had no interest in the suit, and the circuit court rightly dismissed her petition.

As to what constitutes a common-law marriage is a question that has been much controverted.

In England it has long since been held that to constitute a valid marriage, by the common law, it must be celebrated in the presence of a clergyman in holy orders; the fact that the bridegroom himself was a clergyman in holy orders, there being no other clergyman present did not make the marriage valid. Beamish v. Beamish, 9 H. L. Cas. 274.

In this country, while the weight of authority is that by the common law no celebration was necessary, the view of England's highest court has been sustained in a number of states, —notably, Massachusetts, North Carolina, Maine, Tennessee, and Maryland. In a majority of the states In which the courts of last resort have been called on to pass upon the question, It has been held that a marriage at common law is valid notwithstanding statutory regulations as to the mode of solemnizing marriages, and the preservation of record evidence thereof; and the supreme court of the United States, in Meister v. Moore, 96 U. S. 78, 24 L. Ed. 826—a case coming up from the Western district of Pennsylvania, but involving the validity of a common-law marriage alleged to have been entered into in the state of Michigan, —followed the decision of the supreme court of that state in Hutchins v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164, construing the statute there in force concerning marriages, and holding that it had not superseded the common law.

But in none of the states in which it has been held that a marriage not entered Into in accordance with the requirements of a statute regulating the mode of entering Into thecontract Is a valid marriage is the statute considered by the court, so far as we have been able to find, similar in its provisions to the statute in force in this state since the revision of our laws in 1849.

In the view, therefore, that we take, it is unnecessary for us to enter upon an examination of the decisions in other states as to the effect of their respective statutes upon the common-law right to enter into the marital relation, as these decisions afford us little or no aid in determining the meaning and intent of our legislation upon the subject-When a statute admits of two interpretations—the one destructive of the foundation of society, and inimical to the peace, welfare, and good order of a people, and the other conducive to their welfare, and adding strength and durability to the foundations of society, —the latter, we unhesitatingly think, should be adopted.

Our statute (now section 2222 of the Code), when read in the light of the statutes leading up to it, and which are in pari materia, admits, as we think, after the careful consideration that the gravity of the subject required, of but one construction; and that statute is the same that was in force when it is alleged appellant became the common-law wife of James F. Offield. It is as follows:

"Marriage without License Prohibited; When not Void for Want of Authority in Person Solemnizing It-Every marriage in this state shall be under a license, and solemnized in the manner herein provided; but no marriage 'solemnized by any person professing to be authorized to solemnize the same shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected on account of any want of authority in such person, if the marriage be in all other respects lawful, and be consummated with a full belief on the part of the persons so married or either of them, that they have been lawfully joined together."

A history of this statute begins with the act of 1631 (7 Car. I.), in which nothing is said as to avoiding marriages celebrated otherwise than under a license or after the publication of the banns, nor as to inflicting punishment upon either the parties or the celebrant for failure to observe the provisions of the act; nor were there any such provisions in the next succeeding act. But the act of 1642-3 (18 Car. I.) imposed a forfeiture of 1, 000 pounds of tobacco upon any minister solemnizing marriage without a license to the parties, issued from the governor, or unless the banns had been lawfully published in the parish or parishes where both parties resided. This forfeiture or fine upon the minister was by the act of 1657 (1 Hen. St. p. 433) increased to 10, 000 pounds of tobacco. Then follows Acts 1661 (14 Car. II.; 2 Hen. St p. 51), containing direct words nullifying informal marriages and continuing the fine of 10, 000 pounds of tobacco upon a minister marrying any persons contrary to the provisions of the act This act continued in force till 1696, when the act of 8 Wm. III. was passed. That act including its preamble, is as follows:

"Whereas, many great and grievous mischiefs have arisen and daily do arise by clandestine and secret marriages, to the utter ruin of many heirs and heiresses and to the great grief of all their relations, and whereas, the laws now in force for the prevention of such marriages do inflict too small a punishment for so heinous and great an offense, " be it enacted, etc. "That no minister or ministers shall from henceforth marry any person or persons together as man and wife without lawful license, or without their publication of banns, according to the rubric In the common prayer book * * » and if any minister or ministers shall, contrary to this act, without such license or publication, marry any person or persons, he or they so offending shall for every such offense be imprisoned for one whole year without bail or main-prize, and shall forfeit and pay the sum of five thousand pounds current money, one moiety to our sovereign lord, the king

* * * and the other moiety to him or them that shall sue or inform for the same.

* * * " A like punishment was also imposed on the clerk who wrongfully issued license. 3 Hen. St. pp. 149-151.

It will be readily observed that it was the purpose of these enactments to prevent Informal—common-law—marriages, by imposing punishment upon the celebrant of a marriage not in conformity with the provisions of the statute, and upon a clerk who wrongfully issued a marriage license.

In the revision of the general statutes, as embodied in the Code of 1819, no alteration in the then existing statute on the subject of marriage was made; and it remained unchanged until the adoption of the Code of 1849, when it appears, as it does also in the Code of 1860, and in the compilation of our statutes in 1873, in the exact language of the present Code, as quoted above. It omits the negative terms previously used, i. e., "that no miuister shall celebrate, " or "no marriages shall be celebrated, " etc., and enacts in plain and positive terms that "every marriage in this state shall be under a license, " etc.

It appears quite significant, we think, that this provision was ingrafted upon the statute at the suggestion of the revisers...